McDuffee v. Miami Water Heater Co.

• Decision Date: 15 June 1960
• Citation: 122 So.2d 566
• Parties: Mildred McDUFFEE, Widow, Petitioner, v. MIAMI WATER HEATER CO., Inc., Hardware Mutual Insurance Company, and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 566

122 So.2d 566

Mildred McDUFFEE, Widow, Petitioner, v. MIAMI WATER HEATER CO., Inc., Hardware Mutual Insurance Company, and Florida Industrial Commission, Respondents.

Supreme Court of Florida.

June 15, 1960.

Rehearing Denied Sept. 19, 1960.

Welsh, Cornell & Pyszka and Errol S. Cornell, Miami, for petitioner.

James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

PER CURIAM.

This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari upon the transcript of record and briefs to review the order of the Florida Industrial Commission in said cause bearing date January 8, 1960, and the petitioner having failed to show that the essential requirements of law have been violated, it is ordered that said Petition be and the same is hereby denied.

THOMAS, C. J., and HOBSON, ROBERTS, THORNAL and O'CONNELL, JJ., concur.

TERRELL and DREW, JJ., dissent.

TERRELL, Justice (dissenting).

This is a petition for certiorari to review an order of the Florida Industrial Commission, hereinafter referred to as the Commission, which affirmed the order of the Deputy Commissioner dismissing petitioner's claim for benefits under the workmen's compensation law.

The pertinent facts found by the Deputy are as follows. The decedent, David McDuffee, was employed by the Miami Water Heater Co., Inc., Miami, Florida. Late afternoon December 5, 1958, McDuffee left Miami driving a pick-up truck belonging to his employer; the truck was loaded with equipment necessary to install a water-softening plant at the Old South Barbecue Restaurant on U. S. Highway 41, a short distance north of Fort Myers, Florida, where he was to install the water-softening equipment December 6, 1958. He arrived at the Old South Barbecue Restaurant at approximately 10 o'clock p. m., where he remained until 11 o'clock p. m., during which time he discussed with the operator and owner of the restaurant the installation of the water softener on the following day. The owner cautioned McDuffee that the equipment must be installed the next day or he did not want it. McDuffee stated that he would try to get it installed but he had a contact to make and the owner replied that if he had any contact to make, he had better make it that night or after he had installed the equipment the next day. While at the restaurant McDuffee appeared to be normal except that he stated that he had driven from Miami and was rather tired.

McDuffee registered at the Parker Plaza Motel at approximately 11:30 o'clock on the night of December 5, 1958. He remained there only a few minutes and after being shown his room, he asked the manager where he could get a bottle of beer. The manager suggested the Brown Jug, which was approximately one-half to three-fourths of a mile south of the motel towards Fort Myers. The motel itself was 600 to 700 feet south of the Old South Barbecue Restaurant.

McDuffee was involved in an automobile accident between 2:30 and 3 o'clock a. m., at a point on U. S. Highway 41, approximately 3 or 4 miles north of the Old South Barbecue Restaurant and 1.3 miles north of the Lee-Charlotte County line. The details of the accident are not important here except to state that McDuffee met his death as a result of the collision of his truck with a tractor-trailer of the Tamiami Motor Lines.

In denying petitioner's claim for compensation, the Deputy made the following findings:

'(6) That there was no testimony to show that the employee had ever had any contacts for the sale of merchandise in the area of Charlotte County. There was no evidence that he had ever made any calls in that area for the sale of his employer's product, and since his death no one has contacted the employer relative to the purchase of any water-softening or water-conditioning equipment which the employee had mentioned, or that they ever had any contact with the employee during his lifetime, and in fact the employer has never sold any water conditioning equipment in Charlotte County.

'(7) That there was no showing of any reason why the employee was at a point north of the Old South Barbecue Restaurant for any reason, as his destination when he left his employer was the Old South Barbecue restaurant where he was going to install a water-conditioning unit on the following day. That at the time of the accident he was not doing anything for the furtherance of his employer's business and was not within the scope of his employment at the time of the accident, and the claim of Mildred S. McDuffee, widow of the deceased employee, for death benefits under the Workmen's Compensation Act should be denied and dismissed, as the employee's death was not caused by an injury arising out of an accident in the course of his employment.'

The Commission affirmed the order of the Deputy in a memorandum decision citing United States Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741.

The petitioner contends (1) there is no competent substantial evidence to support the Deputy's findings, and (2) the character of the evidence introduced impelled the Deputy as a matter of law to draw the inference that the employee met his death in an accident arising out of and in the course of his employment. The thrust of petitioner's argument is that in cases like this, in the absence of a positive showing to the contrary, the law presumes that the accident occurred while the person injured was in the course of his employment and the burden is on the employer to show by direct and positive evidence that it did not so occur. She relies upon Sanford v. A. P. Clark Motors, Inc., Fla.1950, 45 So.2d 185, and insists that the respondents have failed to carry the burden imposed upon them. Respondents urge that there is competent substantial evidence to support the Deputy's findings; that the burden is upon a claimant to establish a causal connection between his injury and employment, Martin v. Board of County Commissioners, Fla.1955, 79 So.2d 513; and that the evidence clearly demonstrates that the employee deviated from his employment and is therefore not entitled to recover. N. & L. Auto Parts Co. v. Doman, Fla.App.1959, 111 So.2d 270, certiorari denied Fla., 117 So.2d 410; Fidelity & Casualty Co. of New York v. Moore, 1940, 143 Fla. 103, 196 So. 495; Foxworth v. Florida Industrial Commission, Fla.1955, 86 So.2d 147.

If the respondents are correct in their contention that McDuffee deviated from the course of his employment, there would be no need to discuss the issue of where the burden lies. However, I have read the record and to me it is clear from the testimony of the president of the respondent, Miami Water Heater Co., Inc., that there may have been no deviation. The president testified that he had McDuffee listed as a salesman doing convass work. He stated that McDuffee brought in his own leads, did deliveries, installed and serviced his own equipment,...